Application of a STUDENT WITH A DISABILITY, by his parent, for the removal of Dr. Howard M. Koenig as Superintendent of the Central Islip Union Free School District and appeal from action of the Central Islip Union Free School District regarding home instruction.

Decision No. 17,391

(May 16, 2018)

Kevin A. Seaman, Esq., attorney for respondent Dr. Howard M. Koenig

ELIA, Commissioner.--Petitioner seeks the removal of Dr. Howard M. Koenig (“respondent” or “superintendent”) as Superintendent of the Central Islip Union Free School District and appeals from action of the school district in failing to provide “proper help” relating to his request for approval of an individualized home instruction plan.[1]  The application must be denied and the appeal must be dismissed.

Petitioner resides within the Central Islip Union Free School District and is the father of a student with cerebral palsy and multiple disabilities (the “student”).  Although the petition is very unclear, the crux of petitioner’s claims against respondent involve petitioner’s attempts to have the student home schooled in light of his multiple disabilities.  By letter dated November 2, 2017, respondent denied petitioner’s request for approval of an individualized home instruction plan (“IHIP”) for the student pursuant to 8 NYCCR §100.10. This application and appeal ensued.

Petitioner seeks removal of the superintendent pursuant to Education Law §306.  Petitioner asserts that respondent’s November 2, 2017 letter violated Commissioner’s regulation §100.10 because it “did not put the board of education meeting date and other required information as per regulations.”  Although not entirely clear from the petition, petitioner appears to argue that the November 2, 2017 letter also violated the federal Health Insurance Portability and Accountability Act (“HIPAA”) because respondent copied the district’s attorney on the letter.  Petitioner further asserts that he is requesting the removal of respondent based on “14 citations from NYSED ... between February 2017 [and] August 2017.”  Petitioner also asserts that he is “requesting proper help with homeschooling and other help for my son as per law.”

Respondent contends that the application for his removal must be denied as untimely and for lack of proper service.  Respondent denies any wrongdoing and asserts that petitioner has not met his burden of proving a wilful violation pursuant to Education Law §306.  

I must first address several procedural issues.  On December 22, 2017, my Office of Counsel received an additional submission from petitioner, dated “December  , 2017” (sic) entitled “Verified (by notary public) reply #2” (“second reply”).[2]  The submission appears to be in the nature of a reply.  However, petitioner attaches various materials, including correspondence and an IHIP.  The purpose of a reply is to respond to new material or affirmative defenses set forth in an answer (8 NYCRR §§275.3 and 275.14).  A reply is not meant to buttress allegations in the petition or to belatedly add assertions that should have been in the petition (Appeal of Caswell, 48 Ed Dept Rep 472, Decision No. 15,920; Appeal of Hinson, 48 id. 437, Decision No. 15,908; Appeal of Baez, 48 id. 418, Decision No. 15,901).  Therefore, I have not considered petitioner’s second reply (see Appeal of Parker, 56 Ed Dept Rep, Decision No. 17,054).

Moreover, to the extent petitioner is attempting to submit additional evidence, I note that additional affidavits, exhibits and other supporting papers may only be submitted with the prior permission of the Commissioner (8 NYCRR §276.5).  While this provision permits the submission of additional evidence, it cannot be used to add new claims against a respondent for which notice has not been provided (Appeals of Gonzalez, 48 Ed Dept Rep 405, Decision No. 15,898; Appeal of Marquette, et al., 48 id. 193, Decision No. 15,833).  I will not accept materials that raise new issues and introduce new exhibits that are not relevant to the claims originally raised in the appeal (Appeals of Gonzalez, 48 Ed Dept Rep 405, Decision No. 15,898; Appeal of Marquette, et al., 48 id. 193, Decision No. 15,833).  Petitioner has not requested permission to serve any additional papers.  For this additional reason, I have not considered petitioner’s second reply.

The application for respondent’s removal must be denied for lack of proper service.  Section 275.8(a) of the Commissioner’s regulations requires that the petition be personally served upon each named respondent.  If a school district is named as a respondent, service upon the school district shall be made personally by delivering a copy of the petition to the district clerk, to any trustee or any member of the board of education, to the superintendent of schools, or to a person in the office of the superintendent who has been designated by the board of education to accept service (8 NYCRR §275.8[a]; Appeal of Peterson, 48 Ed Dept Rep 530, Decision No. 15,939; Appeal of Naab, 48 id. 339, Decision No. 15,877).  

According to petitioner’s affidavit of service, the petition was served by mail on November 16, 2017 on the district clerk.[3]  As noted, §275.8(a) requires that the superintendent be personally served.  There is nothing in the record indicating that the district clerk is authorized to accept service on behalf of the superintendent.  Service upon the district clerk does not secure personal jurisdiction over an individual respondent, such as the superintendent, whom petitioner seeks to have removed from office (Application of Lyons-Birsner and Birsner, 57 Ed Dept Rep, Decision No. 17,160).  Petitioner has not effected proper service upon respondent, in accordance with §275.8(a) of the Commissioner’s regulations, and, therefore, the application must be denied.  

The application for removal must also be denied because the notice of petition is fatally defective.  Section 277.1(b) of the Commissioner’s regulations requires that the notice of petition specifically advise a respondent that an application is being made for respondent’s removal from office pursuant to Education Law §306.  In this case, petitioner failed to comply with §277.1(b), but instead used the notice prescribed under §275.11(a) for appeals brought pursuant to Education Law §310.  A notice of petition which fails to contain the language required by the Commissioner’s regulations is fatally defective and does not secure jurisdiction over the intended respondent (Application of Johnson, et al., 56 Ed Dept Rep, Decision No. 17,055; Appeal of Hertel, 49 id. 267, Decision No. 16,021; Application of Barton, 48 id. 189, Decision No. 15,832; Appeal of Catalan, 47 id. 176, Decision No. 15,660).  It is the notice of petition that alerts a party that he or she is the subject of removal proceedings, and the failure to comply with 8 NYCRR §277.1(b) necessarily results in a jurisdictional failure and requires dismissal (Application of Johnson, et al., 56 Ed Dept Rep, Decision No. 17,055; Appeal of White and Carmand, 56 id., Decision No. 16,994; Appeal of Kelly, 45 id. 38, Decision No. 15,253).

The application for removal of the superintendent must also be denied as untimely to the extent petitioner asserts 14 “citations” from the New York State Education Department (“NYSED”) against respondent between February and August 2017.  An appeal to the Commissioner must be commenced within 30 days from the making of the decision or the performance of the act complained of, unless any delay is excused by the Commissioner for good cause shown (8 NYCRR §275.16; Appeal of Lippolt, 48 Ed Dept Rep 457, Decision No. 15,914; Appeal of Williams, 48 id. 343, Decision No. 15,879).  The 30-day limitation period also applies to a removal application made pursuant to Education Law §306 (8 NYCRR §277.1; Application of Kelty, 48 Ed Dept Rep 476, Decision No. 15,921; Appeal of Budich, 48 id. 383, Decision No. 15,892).  In addition, a removal application may be timely commenced within 30 days of the petitioner’s good faith discovery of the alleged conduct even though the actual conduct occurred more than 30 days before the application was instituted (Application of Nett and Raby, 45 Ed Dept Rep 259, Decision No. 15,315; Application of Bean, 42 id. 171, Decision No. 14,810).  Petitioner requests respondent’s removal based on “14 citations from NYSED ... between February 2017 to August 2017.”  Even assuming arguendo that petitioner properly served the petition on November 16, 2017, the application is timely only to the extent that it asserts claims against respondent occurring within 30 days prior to service.  Therefore, to the extent petitioner asserts 14 citations against respondent between February and August 2017, those claims would also be dismissed as untimely.

Even if petitioner’s application for respondent’s removal was not denied on procedural grounds, it would be denied on the merits.  A member of the board of education or a school officer may be removed from office pursuant to Education Law §306 when it is proven to the satisfaction of the Commissioner that the board member or school officer has engaged in a wilful violation or neglect of duty under the Education Law or has wilfully disobeyed a decision, order, rule or regulation of the Board of Regents or Commissioner of Education (Application of Kolbmann, 48 Ed Dept Rep 370, Decision No. 15,888; Application of Schenk, 47 id. 375, Decision No. 15,729).  I have reviewed the allegations set forth by petitioner in support of his application for removing respondent from office and do not find that the evidence supports a finding that he wilfully violated the law or neglected his duty, the standard that must be met for removing a board member from office (Appeal of Andrews, 31 Ed Dept Rep 453, Decision No. 12,697; Appeal of Young, 24 id. 313, Decision No. 11,405).

To the extent that petitioner intends to maintain an appeal, pursuant to Education Law §310, based upon his claim that “the district” failed to provide him with “proper help” in preparing an IHIP – such appeal must also be dismissed on procedural grounds.  To the extent that petitioner is claiming that respondent superintendent failed to provide such help, such claim must be dismissed, as noted above, for lack of proper service on the superintendent.  To the extent that petitioner is claiming that the school district has failed to provide such help, the petition must be dismissed for failure to properly join the board of education, as the governing board of the school district.  The petition does not specifically seek any relief as against the board of education and did not name the board of education or the school district in the caption.  A party whose rights would be adversely affected by a determination of an appeal in favor of a petitioner is a necessary party and must be joined as such (Appeal of Sutton, 57 Ed Dept Rep, Decision No. 17,331; Appeal of Murray, 48 id. 517, Decision No. 15,934).  Joinder requires that an individual be clearly named as a respondent in the caption and served with a copy of the notice of petition and petition to inform the individual that he or she should respond to the petition and enter a defense (Appeal of Sutton, 57 Ed Dept Rep, Decision No. 17,331; Appeal of Murray, 48 id. 517, Decision No. 15,934).  I note that the petition also did not name the individual board members in a manner that would signal that an appeal is being brought against them in their official capacity or otherwise alert the board that it needs to answer the petition, and, as a consequence, the board did not appear and submit an answer herein (cf., Appeal of Saleh, 51 Ed Dept Rep, Decision No. 16,310 [petition not dismissed for failure to join the board where individual board members were named in the caption as members of the board and respondents had a fair opportunity to respond to petitioner’s allegations]). Therefore, because the board has not been properly joined as a respondent, any appeal as against it must also be dismissed.

Nevertheless, the appeal would also be dismissed on the merits.  Petitioner’s claim, which alleges only that the district failed to provide “proper help” relating to home schooling his son, must be dismissed for failure to state a claim upon which relief may be granted.  A petition must contain “a clear and concise statement of the petitioner’s claim showing that the petitioner is entitled to relief and shall further contain a demand for the relief to which the petitioner deems himself entitled” (8 NYCRR §275.10).  Such statement must be sufficiently clear to advise a respondent of the nature of petitioner’s claim and of the specific act or acts complained of (id.).  Where petitioner is not represented by counsel, a liberal interpretation of this regulation is appropriate absent prejudice to the opposing party (Appeal of D.B., 57 Ed Dept Rep, Decision No. 17,244; Appeal of Stieffenhofer, 48 id. 231, Decision No. 15,846).  Where a petition fails to state a comprehensible claim and fails to identify the specific remedy sought, it will be dismissed (see Appeal of C.P., 55 Ed Dept Rep, Decision No. 16,784; Appeal of Stepien, 48 id. 487, Decision No. 15,926).  Here, the petition is devoid of any explanation of what help the “school district,” board of education or superintendent failed to provide him with respect to his request for “proper help with homeschooling and other help for my son as per law.”  Petitioner provides no specificity as to the facts of his claim nor does he cite any legal authority as a basis for his claim.  Therefore, even affording a liberal interpretation of the petition, I am unable to discern the claims petitioner asserts or the relief petitioner seeks against the board of education, school district or superintendent and, therefore, am unable to determine that he is entitled to any relief.

Although the application is denied, and the appeal is dismissed for the foregoing reasons, one administrative matter remains.  Respondent has requested a certificate of good faith pursuant to Education Law §3811(1).  Such certification is solely for the purpose of authorizing the board to indemnify a respondent for legal fees and expenses incurred in defending a proceeding arising out of the exercise of his or her powers or performance of duties as a board member or other title listed in §3811(1), which includes superintendents.  It is appropriate to issue such certification unless it is established on the record that the requesting respondent acted in bad faith (Application of McCray, 57 Ed Dept Rep, Decision No. 17,240; Application of Valentin, 56 id., Decision No. 17,014; Application of Paladino, 53 id., Decision No. 16,594).  In view of the fact that there has been no finding that respondent acted in bad faith, I hereby certify solely for the purpose of Education Law §3811(1) that respondent is entitled to receive the requested certificate (Application of McCray, 57 Ed Dept Rep, Decision No. 17,240; Appeal of Affronti, 54 id., Decision No. 16,756; Appeal of Johnston, 50 id., Decision No. 16,184).

THE APPLICATION IS DENIED AND THE APPEAL IS DISMISSED.

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